Professor of International Law, Department
of Political Science, Purdue University

In an editorial column ("An International Conference for
the Mideast") back in July/August 1987, TIKKUN Magazine
endorsed a Palestinian state, but only conditionally. Said editor
Michael Lerner: "TIKKUN continues to stress that the
Palestinian state we would support could only be created on
conditions similar to those imposed on Austria after World War II
- total demilitarization and political neutrality enforced by the
Great Powers." Moreover, continued Lerner: "Israel
would have to have treaty rights to invade the moment there was
any introduction of tanks, planes, or heavy weapons. We have no
illusions about the PLO itself and would never agree to a
Palestinian state that significantly threatened Israel's
security."

Today, some thirteen years later, it is apparent that TIKKUN
no longer imposes such conditions and that its endorsement of a
Palestinian state is manifestly unconditional. Of course, even in
1987, Lerner was explicitly not worried about threats to Israel's
security that were insufficiently "significant." Now
the presumed imperatives of Palestinian
"self-determination" are so overriding for TIKKUN that
the magazine's most palpable concern seems no longer to be
Israel's safety. Rather, this concern now seems to be the
prevention of an Israeli aggression against a weak and pitiable
Palestine.

By itself, TIKKUN'S opinion on such matters is altogether
unimportant. And far more important than TIKKUN'S turnaround on
conditions for Palestinian statehood is the publication's
underlying naivete about "demilitarization." The
presumed military constraints that would be placed upon Palestine
by such a "remedy" would be utterly toothless, a
convenient fiction to make a bad agreement look good. In the end,
the "demilitarization" of Palestine might not even be
supported by international law. For reasons which we shall now
summarize briefly, it could be entirely lawful for the new state
of Palestine to refuse compliance with pre-independence
commitments.

As a fully-sovereign state, Palestine would not necessarily be
bound by any pre-independence compacts, even if these agreements
were to include U.S. guarantees. Because treaties can be binding
only upon states, an agreement between a nonstate Palestinian
Authority (PA) and the State of Israel would have no real treaty
authority and no real effectiveness. Consider the American case
of Tel-Oren v. Libyan Arab Republic (1984). Here, the Court ruled
that any agreement between a state and a nonstate authority must
always pose "unequal obligations," that is, lesser
obligations upon the latter.

What if the government of Palestine were willing to consider
itself bound by the prestate, nontreaty agreement, i.e., if it
were willing to treat this agreement as an authentic treaty? Even
in these seemingly favorable circumstances, the new Arab
government would have ample pretext to identify various grounds
for lawful "treaty" termination. It could, for example,
withdraw from the agreement because of what it would describe as
a "material breach," an alleged violation by Israel
that reportedly undermined the object or purpose of the
agreement. Or it could point toward what international law calls
a "fundamental change of circumstances" (rebus sic
stantibus). In this connection, if the Palestinian state declared
itself vulnerable to previously unforseen dangers - perhaps even
from the forces of other Arab armies - it could lawfully end its
codified commitment to remain demilitarized.

There is another method by which a treaty-like agreement
obligating a new Palestinian state to accept demilitarization
could quickly and legally be invalidated after independence. The
usual grounds that may be invoked under domestic law to
invalidate contracts also apply under international law to
treaties and treaty-like compacts. This means that the new state
of Palestine could point to errors of fact or to duress as
perfectly appropriate grounds for terminating the agreement.

Any treaty or treaty-like agreement is void if, at the time it
was entered into, it conflicts with a "peremptory" rule
of general international law (jus cogens- - a rule accepted and
recognized by the international community of states as one from
which "no derogation is permitted." Because the right
of sovereign states to maintain military forces essential to
"self-defense" is certainly such a peremptory rule,
Palestine, depending upon its particular form of authority, could
be entirely within its right to abrogate any pre-independence
agreement that had "compelled" its demilitarization.

Thomas Jefferson, who had read Epicurus, Cicero and Seneca, as
well as Voltaire, Montesquieu, Holbach, Helvetius and Beccaria
once wrote about obligation and international law as follows:

The Moral duties which exist between individual and
individual in a state of nature, accompany them into
a state of society and the aggregate of the duties
of all the individuals composing the society
constitutes the duties of that society towards any
other, so that between society and society the same
moral duties exist as did between the individuals
composing them while in an unassociated state, their
maker not having released them from those duties on
their forming themselves into a nation. Compacts
then between nation and nation are obligatory on
them by the same moral law which obliges individuals
to observe their compacts. There are
circumstances however which sometimes excuse the
nonperformance of contracts between man and man:
so are there also between nation and nation. When
performance, for instance, becomes impossible,
nonperformance is not immoral. So if performance
becomes self-destructive to the party, the law of
self-preservation overrules the laws of obligation
to others.

Here it must be remembered that, historically,
demilitarization is a principle applied to various
"zones," not to the entirety of emergent states. Hence,
the new state of Palestine might have yet another legal ground
upon which to evade compliance with pre-independence commitments
to demilitarization. It could be alleged, inter alia, that these
commitments are inconsistent with traditional bases of
authoritative international law - bases found in treaties and
conventions, international custom, and the general principles of
law recognized by "civilized nations" - and that
therefore they are commitments of no binding character.

Israel, early TIKKUN opinion notwithstanding, should draw no
comfort from the allegedly legal promise of Palestinian
demilitarization. Indeed, should the government of the new state
of Palestine choose to invite foreign armies and/or terrorists
onto its territory (possibly after the original Arafat authority
is displaced or overthrown by more militantly Islamic,
anti-Israel forces), it could do so without practical
difficulties and without violating international law. In the
final analysis, of course, the overriding danger to Israel of
accepting Palestinian statehood contingent upon demilitarization
is more practical than legal, and stems preeminently from
Israel's persistent unwillingness to acknowledge openly- stated
Palestinian objectives. At a minimum, it would seem reasonable
for Prime Minister Barak to ask Yasir Arafat: "Why does the
official PA map of Palestine include all of Israel?"

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LOUIS RENE BERES was educated at Princeton (Ph.D.,
1971) and is the author of many books and articles dealing with
international law. His work is well-known to Prime Minister
Barak; to his immediate predecessors in the prime minister's
office; to the Legal Adviser's Office (Ministry of Foreign
Affairs); and to the IDF General Staff. He has co-authored
several scholarly law journal articles on Palestinian
demilitarization with Zalman Shoval, a former Israeli Ambassador
to the United States.